Monday, October 31, 2005

"20 Eagle Street: The Court of Appeals"

These are the responses to my October 28 article, "New York Court Of Appeals, In 2005, Reads The Fourth Amendment (1791) To Aid Man With Coke In Fuel Tank Who Consented To Vehicle Search" Thanks to all, please continue to provide us with your feedback.

It is better to interfere with the distribution of cocaine before it reaches the streets YES, IF IT'S DONE LEGALLY. for resale than to collaborate with drug dealers by limiting the scope of their consent, or forbidding the police to follow clues which they discern because of their experience in dealing with subterfuge of this sort. PIFFLE. THE LAW PROTECTS US ALL, EVEN THE SCUM. OTHERWISE, YOU'RE INTO TORTURE AND WE DON'T WANT TO GO THERE, DO WE? Query, if a police dog had sniffed the cocaine, would that be reasonable cause for a search? OF COURSE.

Actually, the court didn't throw out the conviction, but merely held> that the Defendant's consent to search the car was not itlsef> sufficient to justify tearing open the gas tank. The court said it> had no opinion on whether the officer's actions were justified by> probably cause. I would be very surprised if the decision on remand> to the supreme court were anything other than a ruling that the> officer's actions were reasonable, in terms of his growing suspicion,> etc. Doesn't that seem to be the right result (i.e., a ruling that a> consent to search a car doesn't generally include permission to tear> open the gas tank, but that in this particular case there was no> unreasonable search and seizure because the officers acted reasonably> in following up on their suspicions?

Good work, Henry!> That same Ct of App (not to mention the court of public opinion) wouldhave> chastised the police> if the issue had been the FAILURE to do a thorough inspection, once they> were justified in doing> any inspection at all. A troubling decision, but not surprising tosomeone> who once sat in the same> office with the writer of the majority opinion.

In the interest of equal treatment -- would you feel the same if the police confiscated the car of an individual SUSPECTED of drunk driving after finding a an open bottle on the floor of his car?

That's done all the time by NYPD and not a soul protests (except the defense attorneys) and if they are found innocent by a judge and released there is no compensation for the costs of hauling the car to and from the impound lot.

The only people involved with the police who are treated with less concern for their rights than suspected DWI are sex offenders.

I AM WITH YOU UP TO THE LAST PARAGRAPH. RULES AND LAWS ARE TWO DIFFERENT THINGS. LAWS ARE MADE TO FOLLOW, EXPLICITLY. RULES, SADLY, ARE TOO OFTEN MADE TO BE BROKEN. YES, IT IS HAIR-SPLITTING, BUT THAT IS WHAT WE LIVE BY. PERHAPS THE POLICEMEN'S ANSWER SHOULD HAVE BEEN TO LIGHT A CIGARETTE AND HAVE THE MATCH "ACCIDENTALLY" FALL INTO THE GAS TANK.

The exclusionary rule protects only the guilty; the alternative is to give prompt and courteous indemnification to the innocent, maybe even an apology. Experience leads me to believe that reimbursement for the damage would be paid only grudgingly after litigation with the City fought tooth and nail in the most pettifogging and obnoxious manner over the course of a year or more. An apology would not be forthcoming.

A reasonable person would not think that consent to search is the same as consent to dismantle. If the police had reasonable cause to believe that dismantling the car would reveal contraband after the consent search, they could have gotten a search warrant. This is a little cumbersome perhaps, but preserves what little is left of our right to be secure in our persons and property. I think that this is the real meaning of the Court's decision.

Your reasoning is from conclusion to rationale - which, with all due respect, is backward. The idea of civil liberties is to protect the innocent from unchecked government conduct, whether gas tank probes, or cavity searches (an interesting analogy). No one can dispute that we should not interfere with the distribution of cocaine before it reaches the streets for resale, but where we draw the line, "bright" or otherwise, in terms of governmental action to prevent such crime, and how much must the average innocent citizen tolerate in terms of "in your face" government, is the hard question. You can't fairly phrase it the way you have.